Litigation associates may face a steep learning curve, especially in terms of their first filing. Often, law school does very little to teach the specifics of actually filing a brief or other document with the court. And after the brief has been drafted, reviewed, cite checked, and proofed, you might only have an hour or two to file by the deadline. This article presents a list of items to think about a few days before the filing will actually take place to prepare you for the questions that partners may ask in the final few harrowing minutes before you hit the “submit” button. This is not an exhaustive list, but thinking about these issues in advance will have you well on your way to a smooth filing.
Meet-and-Confers or Notice Obligations
Sometimes you may need to communicate with opposing counsel to see if you can work the issue out before filing a brief with the court. In many jurisdictions, meet-and-confers are required for all motions except for those that will dispose of the case (for example, a motion for summary judgment). If a meet-and-confer is required, you will need to leave some time to communicate with opposing counsel prior to filing. Check your local rules to make sure that you’ve met any such obligations.
In most jurisdictions, filing is done electronically. However, there are still a few that require paper filing. In addition, even jurisdictions that use electronic filing may require paper for certain filings. If you’re filing a complaint, there are specific rules for filing and serving that you must adhere to. And if you’re filing something under seal, you may need to get it to the court the old-fashioned way. Confirm in advance that you can file electronically and whose name the brief will be filed under (yours or that of another attorney, with his permission), and make sure that person’s log-in info works.
You may need to count backward from a hearing date, or forward from the date that another brief was filed. Double-check in advance that you have this right, and send your math, along with a copy of the applicable rule, to someone to review if you’re not sure.
Once you’re confident about the date, make sure you know the time that briefs are due on that date. Electronic filing frequently allows you to file until midnight on the due date in the time zone of the jurisdiction, but not always. In some jurisdictions, if you file after the court closes, your opposing counsel may get an extra day to respond.
If opposing counsel will not be served immediately through the court’s electronic filing system, consider whether you should send them a courtesy copy via email. If you need to file via paper, check the court hours and make sure that you or a courier has plenty of time to get there before it closes.
The Actual Filing
Who will be in charge of the actual filing? Will it be you or an assistant? Identify in advance the person who is actually going to be uploading documents to the court. If you think that the filing may go late, make sure that the person in charge of this task is available to stay after hours. Letting your assistant know in advance that a filing is coming up and what time you think the documents will be ready can help the assistant plan any other tasks.
Your brief—the part that you spent most of your time drafting—usually isn’t filed alone. A notice of motion, motion, and proposed order are also generally required. (The exact names of the documents may be different in your jurisdiction, just as your brief may be referred to as a “memorandum.” Check your rules to name your documents correctly.)
The notice of motion and motion may be a single document. Your assistant or another attorney in your office may have an example that you can use to help you draft your own.
Think about the language of the proposed order in advance as it is your chance to phrase your relief exactly as you want the judge to grant it. While the other documents are generally submitted as PDFs, some courts may require submission of a Microsoft Word version of the proposed order so they can edit it. They may even require submission of this editable proposed order by email.
Talk to the partner and the client in advance about whether the brief and/or any of the exhibits need to be filed confidentially or under seal. Look to see if there is a protective order or a case-management order in your case that has definitions of what it means for a document to be “confidential.” The term may be defined with reference to the rules of civil procedure in your jurisdiction. Also, determine whether you need to seek permission from the court in advance to file documents under seal. Then, refer to the local rules in your jurisdiction to determine how these special documents need to be filed.
Redaction of Sensitive Information
It’s easy to submit voluminous exhibits and forget to redact someone’s SSN buried somewhere on page 327. Check your local rules to see what needs to be redacted, and make sure someone goes through to double-check that you’ve redacted all sensitive information as required by the court.
Citation to Unpublished Cases
With widespread access to Westlaw and Lexis, courts are frequently less concerned about citations to unpublished cases. But it’s worth checking whether your jurisdiction still has a rule on the books requiring you to serve copies of unpublished cases on opposing counsel or the court.
The page limit can usually be found in your local rules. Inform other team members of the page limit in advance so that you don’t have to make a desperate, 11th-hour length revision on the day of filing. Do a final review before you file to make sure that a last-minute formatting edit hasn’t taken you past the page limit.
What are the required font size, margins, justification, caption, and signature block information? These are all minor formatting issues, but briefs can get rejected if you don’t have them right. You’ll save yourself a lot of trouble by reviewing the local rules and setting up the document with the correct formatting the first time. You should still do a final check before you file to make sure that nothing has been inadvertently changed when the documents were passed from reviewer to reviewer. For appellate briefs, also check whether the cover needs to be a certain color and if it needs to be bound in a particular way.
Find out whether there is a filing fee for your type of brief, how much it is, and how your firm typically handles payment. When in doubt, pay the filing fee—better to have paid a filing fee that wasn’t required than not pay one that was and risk your brief not being timely accepted by the court.
Judge: Special Rules or Preferences
In addition to looking at the applicable rules of civil procedure and local rules, find out if your judge has special procedures or requirements when filing. Sometimes judges will enter an order containing these rules. Look back at the docket to find out. If the judge has a webpage on the court website, check there as well for a document listing the judge’s preferences. You may also want to email other attorneys in your firm to see if they’ve been before your judge and to obtain any advice or preferences documents that they can offer.
Affidavit of Service
Frequently, the electronic filing of a document replaces the need for an actual affidavit of service page. But this is not true in all jurisdictions. Check your local rules in advance to make sure that you have an affidavit of service drafted if you need one, and check whether it needs to be notarized. If one of the other parties is not represented by counsel or hasn’t filed a notice of appearance yet, you may need to serve that party by mail and file an affidavit of service as well.
Some courts or judges may want a paper copy mailed/couriered to the court in addition to the electronically filed copy. Make sure you request any necessary printed copies in advance so they’re ready to go on the day of (or the day after, if permitted by the court) your filing.
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